Folk v. Goord

Jul 10, 2003
Versions:

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

*501Petitioner was found guilty of violating the prison disciplinary rules that prohibit the possession of weapons and altering an item after a search of his cell uncovered two weapons, a metal shank sharpened to a point with a taped handle and shoestring thong and a long metal toilet brush sharpened to a point. The detailed misbehavior report and extensive hearing testimony constitute substantial evidence to support the determination of petitioner’s guilt (see Matter of Gladden v Selsky, 296 AD2d 680, 681 [2002]). We reject petitioner’s assertion that the Hearing Officer was required to assess the credibility of the confidential information leading to the search of petitioner’s cell inasmuch as the misbehavior report and determination of guilt resulted from the weapons found in the cell and not from the confidential information (see Matter of Ross v Goord, 276 AD2d 952, 952 [2000]; Matter of Brown v Coombe, 241 AD2d 644, 644 [1997]). We are also unpersuaded by petitioner’s contention that the failure to produce the weapons at the hearing or provide him with pictures thereof requires annulment of the determination. Although the employee assistant form indicates that photographs of the weapons would be available at the hearing, petitioner made no request for them when given a chance to do so at the hearing (see Matter of Smith v Coughlin, 111 AD2d 503, 505 [1985]). Furthermore, the misbehavior report described the weapons in detail. Petitioner’s remaining contentions, including that he was denied the right to be present during testimony, have been reviewed and found to be either unpreserved or lacking in merit.

Cardona, P.J., Mercure, Spain, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.